ACT Environmental Law Handbook #4

8/2/2019 ACT Environmental Law Handbook #4

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Environmental impact assessment 33

chapter four

Environmental impact assessment*

byAlice Campey

Andrew Macintosh

IntroductionEnvironmental Impact Assessment (EIA) is a process for ensuring

that decision-makers are informed of the environmental impacts

of activities. EIA also seeks to allow the public to participate inthe decision-making process and improve the quality of those

decisions. In the ACT there are two EIA processes that may

apply, one under ACT legislation, the other under Commonwealth

legislation (see the second half of this chapter).

Under Part 4 of theLand (Planning and Environment) Act 1991

(ACT) (Land Act) the definition of environmental impact (s.111)

covers a wide range of potential impacts, including:

effects on the physical, biological, cultural, aesthetic,

recreational or scientific values of an area

effects on social systems and ecosystems

likelihood of endangered species or communities becoming

further endangered

likely problems of pollution and waste disposal.

In the ACT there is a sequential system of EIA: a Preliminary

Assessment (PA), a Public Environment Report (PER), an

Environmental Impact Statement (EIS) and an inquiry.

The first form of EIA is a PA. As at 31 December 2002, 164 PAs

had been triggered and evaluated. At least a further ten per cent

of proposals triggered a PA, but the proponent then either

In December 2002 the ACT Legislative Assembly passed the Planning andLand Act 2002(ACT) and consequential amendments to the Land (Planning andEnvironment) Act 1991 (ACT). These two pieces of legislation did not commenceuntil 1 July 2003. Though the law in this handbook is stated as it was at 31 December

2002, this chapter incorporates the amendments made by those Acts.

*


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34 Environmental impact assessment

withdrew or modified the proposal, negating the requirement for a PA. Once a

PA has been completed the minister, or relevant minister, has the discretion to

direct further assessment in the form of a PER or an EIS or an inquiry, if he or

she believes that the environmental impact of the proposal is of sufficientsignificance, or if the impact has not been adequately assessed in the PA. The

minister has directed that only four of the 164 PAs continue to a PER and no

EIS or inquiry has been done to date.

The Land Act refers to the Environment Minister; however, at the time of writing

it was the Minister for Planning who was responsible for the EIA provisions of

the Land Act and for the new, independent ACT Planning and Land Authority

(ACTPLA). The Land Act also refers to the relevant minister; this is the minister

responsible for the legislation under which a particular EIA or inquiry is

authorised (s.111).

When is EIA required?EIA can be initiated through the Land Act, the Environment Protection Act

1997(ACT) and the Public Health Act 1997(ACT).

Under Part 4 of the Land Act, EIA can be required for the following (defined)

decisions:

development applications (see Chapter 3)

draft variations to the Territory Plan (TP) (see Chapter 2)

the grant of leases by the government (see Chapter 2)

subdivisions or consolidations of leases (see Chapter 2)

the preparation or revision of draft plans of management for public land,for example, national parks, nature reserves, and urban open spacethe

requirement for an EIA on draft plans of management is at the discretion

of the Conservator of Flora and Fauna (see Chapter 8).

The Environment Protection Act provides that EIA can be required for activities

(not subject to development application) that might cause significant

environmental harm. To date there have been no examples where this has

occurred.

The Public Health Act provides that EIA can be required for developments that

might have a significant effect on public health. To date there have been no

examples where this has occurred.

Preliminary AssessmentWhen is a PA required?The Land Act provides that a PA is mandatory for proposals listed in Appendix II

of the TP, including:


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buildings of significant height, or gross floor area, or within sensitive land

use areas

specified manufacturing industries

major roads clearing of more than 0.5 ha of remnant native vegetation

waste disposal facilities.

The minister may exempt an Appendix II proposal if he or she is satisfied that:

the proposal does not represent a significant change on an existing situation

the proposal has already been the subject of another form of assessment

it is intended by agreement with the Commonwealth or New South Wales

that the proposal be assessed by that authority.

Examples where proposals have been exempted from EIA requirements include:

the electricity co-generation plant at Mugga Tipthe site had already

been subject to two sets of impact assessment

fibre optic cabling from Civic to the ANUthe proposal would not cause

significant change in environmental quality

Amaroo schoolsthe proposals were already the subject of another form

of assessment completed under previous legislation prior to self-

government (the 1989 Gungahlin EIS).

The minister also has discretionary powers under the Land Act to direct that a

PA be prepared.

Whether mandatory or discretionary, if a PA is triggered the minister, or therelevant minister, must notify the proponent in writing with a brief description

of why the proposal requires an impact assessment.

Who prepares the PA?A PA is prepared by a proponent, the person or body nominated by the minister,

whose interests would be most directly affected by the decision (s.112). This is

usually the person or body proposing the development and may be a company

or a government authority. It seems to be generally accepted that the proponent

is normally best placed to modify proposals to take account of environmental

impacts and, therefore, it is most appropriate that the proponent take

responsibility for preparing the PA.ACTPLA, the body that administers environmental impact assessment in the

ACT, writes to the proponent to trigger the PA, and provides the document

Procedures for preparing a preliminary assessment. This document assists

proponents in the preparation of PAs by outlining their scope and content, and

by describing the administrative procedure for PAs.


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What must be addressed in a PA?The PA must include the matters listed in Schedule 3 of the Land Act (s.115),

including a description of the project, the existing environmental conditions,

the potential environmental impacts and the potential benefits and disadvantages

of the project. If the PA does not address the matters listed in Schedule 3 it may

need to be resubmitted and re-notified. Public comment may also deal with a

failure to address all Schedule 3 matters (see below).

As proposals can differ markedly in the type and extent of their impacts,

Schedule 3 does not detail the type of impacts that must be addressed. In effect,it is the responsibility of proponents to identify the relevant impacts of their

proposal. These impacts may need to be analysed on regional and local scales,

for short and long term effects, and for reversible and non-reversible impacts.

The extent that a proposal exacerbates existing impacts, and the degree to which

effects are likely to be uncertain, are also important.


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ACTPLA provides a list of potential impacts that can be used as a guide by

proponents in identifying the relevant impacts of their proposal. It is made clear

to the proponent that the list is only for guidance and it is not exhaustive of all

issues for the specific proposal, and the proponent will also need to addressthings not on the list.

This list includes:

impacts on the physical environmentincluding energy use and efficiency,

changes in noise levels, generation of traffic, provision of parking, and

nature of and remediation for any contaminated site

impacts on the human environmentincluding possible air pollution,

greenhouse gas emissions, restriction of solar access, heritage issues, and

aesthetic and amenity issues

proposed mitigation measures

potential impacts on non-human, biological environmentsincluding

conservation measures for flora, fauna and communities (particularly those

that are endangered), plus water use, resources, discharges and effects on

aquatic ecology.

This guide can be viewed on the ACTPLA website (see Contacts list at the back

of this book).

PAs are not intended to be an exhaustive analysis; they are preliminary, but of

sufficient scope and detail to determine whether or not potential impacts exist,

and the nature of those impacts. It is the proponents decision as to the level of

detail deemed appropriate. Often proponents lodge very detailed PAs to avoid

the need for further assessment and associated time delays. Consequently, PAs

vary in length from about twenty to hundreds of pages with considerable

attachments, depending both on the size and complexity of the project.

However, to assist proponents in ensuring that all relevant environmental impacts

are addressed, and that the PA meets legislative requirements, ACTPLA offers

a quality control service for draft PA documents. Drafts are distributed within

the authority for comment; these comments are then consolidated and returned

to the proponent to assist in refining the PA.

Once a PA has been formally lodged it cannot be altered or amended in any way.

How can the public participate in the PA process?Once a PA has been submitted to the minister, ACTPLA places a notice in the

ACT legislation register and the Canberra Times, stating that copies of the PA

are available for public inspection for a period of at least fifteen business days in

specified places, including all ACT government public libraries and the ACTPLA

shopfront. A proponent pays a submission fee to cover the cost of such


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advertising. Copies of the PA are available for purchase at the ACTPLA

shopfront, at a cost based on the cost of reproducing the document, photocopying

and binding, but not the expenses incurred in preparing it.

The PA is also available on the ACTPLA website for the duration of the publicconsultation period. Copies are also provided to the Conservation Council of

the South East Region and Canberra, as well as the Local Area Planning Advisory

Committees or other community councils, for example, Tuggeranong Community

Council and Gungahlin Community Council, should the project be in their

catchment.

Members of the public are entitled to make submissions to the minister, or his or

her delegate, within that fifteen-day inspection period. ACTPLA provides no

specific advice to the public on how to prepare a submission; people are

encouraged to provide comments on whatever is important to them. Submissions

can be forwarded to ACTPLA in person, by post, email or fax (see Contacts listat the back of this book). ACTPLA considers all submissions it receives as part

of the assessment of a PA.

What decisions are outcomes of the PA process?From the date the PA is submitted to the minister, he or she has thirty business

days to decide whether or not further assessment is required. This decision is

aided by an evaluation report prepared for the minister by ACTPLA. In

determining whether further assessment is required consideration is given to

whether all issues have been adequately addressed in the PA. Also, potential

amelioration measures are considered and any statutory instruments available

to government that may adequately deal with impacts without the need for

further assessment, for example, pollution licensing.

The evaluation report document is not necessarily released to the public but can

be obtained by contacting the ministers office, and requesting a copy of the PA

evaluation. If a member of the public wishes to find out more about a particular

EIA process, further information may be obtained by using the Freedom of

Information legislation (see Chapter 11).

The decision on whether further assessment is required is the only outcome

required in the PA process. The PA informs the decision-making processit is

not an approval process.

If the EIA has been triggered as part of the development application process,then any recommendations made to the minister as part of the evaluation of the

PA are considered when assessing the application and these recommendations

can become conditions of approval (see Chapter 3).

When the PA is lodged at the same time as the relevant development application,

the two documents are notified concurrently for public comment. Similarly,


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draft variations to the Territory Plan and PAs can be concurrently notified.

Notifications are published in the ACT legislation register (see Contacts list at

the back of this book).

Round table conferencesSection 128 of the Land Actprovides for round table conferences (RTC) that

allow the minister to formally bring together the proponent, affected people and

anyone else the minister considers appropriate. The aim of the RTC is to clarify

the proposal, plus any concerns about it, and discuss ways the proposal could

be modified to reduce or eliminate any potential adverse impacts. Discussion or

suggestions occurring at an RTC may result in the proposal, or aspects of the

proposal, being modified. The minister must consider the report of any RTC

when making a decision on whether further impact assessment is required, that

is, whether a PER or EIS is required.

An RTC was conducted for the Belconnen Soccer Club facilities. The PA forthe club was assessed as being inadequate, so further assessment was required

in the form of a PER, the issues being noise, lighting and traffic. As part of the

PER process the minister directed that an RTC be held to clarify the issues.

Several resident groups, the proponent and officials from Planning and Land

Management in the Department of Urban Services (the precursor to ACTPLA)

attended.

Further impact assessmentIntroductionIf the minister decides a proposal is of sufficient significance, or that the PA has

not adequately addressed the impacts, and therefore it requires further impactassessment, he or she can direct that either a PER or an EIS be prepared (s.121).

Of the 164 PAs completed at 31 December 2002,only four have triggered further

assessment in the form of a PER. At least one other proposal was assessed as

being likely to require further assessment in the form of a PER, but the proponents

subsequently withdrew the proposal. A PER was also required for the proposed

ACT prison, however no PER had been submitted by 31 December 2002. No

proposals have yet required further assessment in the form of an EIS.

Unlike a PA, both a PER and an EIS require the proponent to address possible

alternatives to the proposal.

PER or EIS?Under Div.4.3 of the Land Act the grounds for determining whether further

assessment takes the form of an EIS or PER are based on the extent and number

of the issues to be addressed. That is, a PER would be required where only a

small number of the issues raised in the PA need further assessment, while an

EIS would be required where the whole proposal needs more detailed assessment.


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For example, the Belconnen Soccer Club facilities required further assessment

in the form of a PER, rather than an EIS, because it needed to address only the

three specific issues of noise, lighting and traffic, as opposed to re-addressing

the environmental significance of all aspects of the proposal. The other twoPERs completed to date were for the Tuggeranong Hyperdome extension and

the Woden Plaza redevelopment.

Who prepares the PER or EIS?As with a PA, a PER or EIS is prepared by the proponent. However, the minister

may direct the proponent to engage the services of a consultant specified by the

minister to assist the proponent in the preparation of the further assessment.

Usually the minister indicates that consultants should be chosen from a particular

list rather than specifying an individual consultant.

What must the PER or EIS address?

Both a PER and an EIS must address matters as directed by the minister and asprescribed in s.120 of the Land Act and the Land (Planning and Environment)

Regulations 1992 (Land Regulations).Generally, they include the environmental

effects of the proposal, possible alternatives to the proposal, and the technical

assessment of the proposed environmental standards and safeguards. For each

proposal requiring further assessment, the minister, in consultation with the

relevant minister, must direct the matters to be included in the report or statement

and the relative emphasis to be given to each of these matters (s.123). The

minister must publish the matters to be included in the PER or EIS in the Canberra

Times and ACT legislation register.

Public participationThe procedures for public consultation differ between PERs (s.124) and EISs(s.125).

In relation to the preparation of a PER, the minister may direct the proponent to

undertake consultation and may also direct the type and level of that consultation.

In contrast, under the Land Act public consultation on a draft EIS is mandatory.

Once a draft EIS is complete the proponent must publish a notice in the Canberra

Times stating that copies of the draft EIS are available for public inspection for

a minimum of twenty business days and inviting the public to submit written

comments within that period. The proponent may sell copies of the draft EIS at

a price reflecting the cost of reproducing the document, not the cost of preparingit. The proponent must consider any written comments in the preparation of the

final EIS, as well as submitting a report on the consultation to the minister.

What decisions are outcomes of the PER or EIS process?Once a PER or EIS has been submitted to the minister he or she may, within

forty-two days, direct that further information is required or the document be


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revised. The minister must prepare a written report evaluating the document

within fifty-six days of the document being originally submitted or within a

prescribed period if the minister sought further information or revision of the

document. The ministers evaluation report must include: a statement as to whether the document has been prepared in accordance

with the requirements of the Land Act and Land Regulations and relevant

directions by the minister

any comment about the environmental impact of the proposal

a report on any round table conference

any recommendations about conditions that should be attached to the

development approval.

The minister may, at this stage, recommend that the proposal not proceed.

The minister must then, within six sitting days of finalising the evaluation report,

table in the Legislative Assembly the PER or EIS, the evaluation report, any

report about public consultation, plus the submissions received, and any direction

by the minister to review the assessment document or provide further information.

The minister must make copies of these documents available to the public and

advertise their availability in the ACT legislation register and the Canberra Times.

As with a PA, if the minister recommends that the proposal proceed, then the PER

or EIS goes back to ACTPLA where the development application is being considered,

and the minister can make recommendations to be applied to the proposal.

Inquiry

The Land Act (Div.4.4)allows the minister to initiate a formal inquiry into aproposal or a number of related proposals. The minister appoints the person or

persons to constitute a panel to conduct the inquiry. The minister also determines

the terms of reference for the inquiry and must advertise these in the ACT

legislation register and the Canberra Times.

Each inquiry may determine its own procedures, including whether people may

make submissions orally or in writing, and whether it is to be held in public or

private. After the inquiry has reported to the minister, the minister must table

the report in the Legislative Assembly within six sitting days and advertise its

availability to the public. No such inquiry has yet been held in the ACT.

Commonwealth EPBC ActIntroductionActivities undertaken in the ACT, and in neighbouring areas in New South Wales,

may also need to be assessed and approved under the Environment Protection

and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). These approval

and EIA requirements are in addition to the requirements under ACT legislation.


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The Environment Australia website includes extensive and detailed information about

the operation of the EPBC Act (see Contacts list at the back of this book).

Actions requiring assessment and approval

The EPBC Act prohibits any person from taking an action that is likely to havea significant impact on a matter protected under a provision of Part 3 of the

Act without the approval of the Commonwealth Minister for the Environment

and Heritage.

An action is broadly defined in the EPBC Act as including a project, development,

undertaking and an activity or series of activities. However, the definition of

action expressly excludes:

a decision by a government bodyincluding government agencies and

local councilsto grant a governmental authorisation for another person

to take an action

a decision by a government body to provide funding by way of a grant.

The matters protected under Part 3 can be divided into two categories:

matters of national environmental significance

matters relating to the Commonwealth, Commonwealth agencies and

Commonwealth land.

There are a number of exemptions from these approval requirements, which are

discussed below.

What is a significant impact?The EPBC Act provides no guidance on the meaning of significant impact.

Administrative Guidelines have been prepared by Environment Australia to assist

proponents to determine when a proposed action may have a significant impact

on a matter of national environmental significance. Copies of the guidelines are

available at the EPBC Act page of the Environment Australia website (see

Contacts list at the back of this book). While helpful, these guidelines are not

legally binding.

The Federal Court considered the meaning of significant impact in the case of

Booth v Bosworth ((2001) 114 FCR 39), which involved the destruction by a

lychee farmer of Spectacled Flying-foxes from the Wet Tropics World Heritage

site. The Court suggested that a significant impact under the EPBC Act is one

that is important, notable or of consequence having regard to its context.

Matters of national environmental significanceThere are currently six matters of national environmental significance:

world heritage values of declared World Heritage properties

ecological character of declared Ramsar wetlands


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listed threatened species (other than extinct and conservation dependent

species) and ecological communities (other than vulnerable ecological

communities)

listed migratory species nuclear actions

the environment in Commonwealth marine areas and Commonwealth

managed fisheries.

The matters of national environmental significance, which are most likely to be

of relevance to actions taken in the ACT, are listed threatened species and listed

threatened ecological communities. For example, the listed threatened ecological

communities include the Natural temperate grassland of the Southern Tablelands

of NSW and the Australian Capital Territory. This endangered ecological

community is threatened by land clearing and residential development in the ACT.

The Environment Australia website contains an interactive search map to assist

in determining what matters of national environmental significance are found in

a certain area.

Actions concerning the Commonwealth, its agencies and landUnder Part 3, Division 2, approval is required for the following actions:

those likely to have a significant impact on the environment on

Commonwealth land, irrespective of where the action is carried out

those taken on Commonwealth land that are likely to have a significant

impact on the environment (anywhere)

those carried out by the Commonwealth or a Commonwealth agency thatare likely to have a significant impact on the environment (anywhere).

Commonwealth land is defined broadly to include land owned or leased by the

Commonwealth or a Commonwealth agency, and land in an external territory

(except Norfolk Island) and the Jervis Bay Territory. Similarly, Commonwealth

agency is defined broadly to include any minister, body corporate established

for a public purpose by a law of the Commonwealth, and a company in which

the Commonwealth owns more than half the voting stock (except Telstra

Corporation Ltd).

Referral processA proponent of an action that may have a significant impact on a matter protected

under Part 3 of the EPBC Act is required to refer details of the activity to the

Commonwealth Minister for Environment. If a proponent fails to make such a

referral, the minister may call in the action. Commonwealth, state and territory

agencies may also refer actions proposed by another person to the minister.


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Upon receiving a referral, the minister must determine whether the activity must

be approved, that is, whether the activity is likely to have a significant impact on

a matter protected under Part 3 of the Act. If a proposed action does require

approval it is called a controlled action.If the minister determines an action is a controlled action, he or she must identify

which provisions of Part 3 are the controlling provisions for the action. For

example, if a proposal requires approval because it is likely to have a significant

impact on a listed threatened ecological community, the controlling provisions

are ss.18 and 18A that offer protection for those communities. The minister

usually has twenty business days to determine whether an action is a controlled

action and, if it is, which provisions will be the controlling provisions for the

action.

Notice of all referrals is placed on the Environment Australia website. Unless

the proponent declares that it believes the action is a controlled action, membersof the public will be given ten business days to submit comments on whether

they believe the action is likely to have a significant impact on a matter protected

under Part 3 of the EPBC Act.

Environmental impact assessment processIf the minister determines that an action does require approval, an assessment

must be carried out on the relevant impacts of that action. The relevant impacts

are potential impacts on the matters protected under Part 3 of the EPBC Act

that the minister determined are likely to be affected by the proposal. For example,

if an action is likely to have a significant impact on a listed threatened species,

the assessment must address the potential impacts of the activity on the threatened

species.

After the minister has determined what the controlling provisions for an action

are, the proponent must provide preliminary information to assist the minister

to decide which of the five possible methods of assessment, provided for in

Part 8, should apply. The methods of assessment are:

assessment on preliminary documentation

public environment report (PER)

environmental impact statement (EIS)

public inquiry

accredited assessment process.

In choosing, the minister will have regard to the information provided by the

proponent on the potential impacts of the proposed activity and, if the activity

will be carried out in a state or territory, comments received from the relevant

state or territory government.


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Where assessments are carried out by way of PER, EIS or public inquiry, the

minister will issue guidelines or terms of reference that identify what specific

matters the assessment must address.

Assessments may address impacts other than relevant impacts, however, theywill only do so where the relevant action is to be taken in a state or territory and

that state or territory has asked the minister to ensure that the assessment under

the EPBC Act covers other impacts.

The proponent will generally be responsible for carrying out the assessment and

preparing relevant assessment documentation. The key steps in the assessment

processes (with the exception of public inquiries) and the person responsible for

these steps are set out below.

Provision of preliminary information Proponent

Determination of assessment approach Minister

Preparation of guidelines or terms of reference Minister

(only applies to PERs and EISs)

Preparation of draft assessment documentation Proponent

Publication of draft assessment documentation Proponent

Public comment period Public

Preparation of final assessment documentation, Proponent

taking comment into account

Preparation of assessment report Secretary, Environment

Australia

If the assessment is by way of public inquiry, then the minister will appoint

commissioners to carry out the inquiry and will set their terms of reference. The

commissioners have flexible powers in conducting the inquiry, including the

powers to call witnesses, obtain documents and inspect places. The inquiry

must be held in public unless the commissioners believe it is in the public interest

to hold all or part of it in private. The commissioners must report to the minister

and publish their report, unless the inquiry, or part of it, was held in private.

The responsibility for the preparation of documents and for carrying out necessary

assessments will depend upon the terms of reference for the inquiry and how

the commissioners decide to conduct the inquiry.

Bilateral agreements and accredited assessmentThe EPBC Act allows the minister to enter into agreements with the states and

territories under which the responsibility for assessing and/or approving actions

can be transferred to the state or territory concerned. These agreements are

called bilateral agreements. Where this occurs, actions that fall within the terms


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of the agreement will be exempt from the assessment and/or approval

requirements under the EPBC Act, and will be assessed and/or approved under

the relevant state or territory processes.

At the time of writing, Tasmania, Northern Territory and Western Australia hadentered bilateral agreements with the Commonwealth, covering assessment

procedures only. To date, no bilateral agreements covering approvals have been

entered into, thus all matters must still be referred to the Commonwealth minister

for approval.

A bilateral agreement, which allows for the transfer of assessment responsibilities

only, is currently being negotiated between the Commonwealth and the ACT. A

copy of the draft agreement, which is not endorsed by the ACT, can be viewed

on the Environment Australia website.

In some cases the minister may declare that other Commonwealth, state or

territory assessment processes can be used for the purposes of a particularassessment under the EPBC Act.

These are accredited assessment processes. In order to accredit another

assessment process, the minister must be satisfied that the process will adequately

assess the relevant impacts of the action. At the completion of the accredited

assessment process, the relevant Commonwealth, state or territory agency must

provide the Commonwealth minister with a report on the relevant impacts of

the action. The Commonwealth minister must then decide whether to approve

the action.

Environmental approvals

After the completion of the assessment process, the minister must decide whetheror not to approve the proposed activity and, if it is approved, whether to impose

conditions on the approval. The minister is usually required to make this decision

within thirty days of the completion of the assessment process, or if the assessment

is by inquiry, within forty days.

In making this decision the minister must consider matters relevant to the matters

protected under the controlling provisions. He or she must also take into account:

economic and social matters

the principles of ecologically sustainable development

the assessment report any other information the minister has on the relevant impacts of the

proposed action.

Presumably, this last matter would include any relevant public comment. The

minister may also consider a proponents history in relation to environmental


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matters. Conditions attached to an approval may include provision of a bond or

other security, independent environmental auditing, or monitoring compliance

with codes of practice. It is worth noting that over 900 referrals have been

made and only one has been prevented from proceeding and only about fortyhave had conditions imposed.

PenaltiesFailure to obtain approval for an activity that has, or is likely to have, a significant

impact on a matter protected under Part 3 of the EPBC Act is a criminal offence.

Severe penalties can be imposed for failing to obtain proper approval, including

a fine of up to $5.5 million for a corporation, a fine of $550,000 or seven years

imprisonment or both for an individual.

If a condition attached to an approval is breached, then this is also a criminal

offence with penalties of up to $110,000 or two years imprisonment or both for

an individual and $1.1 million for a corporation. Failure to comply with theterms of an approval can also result in the suspension or revocation of an

approval.

In addition to criminal sanctions, the minister can also bring proceedings in the

Federal Court to obtain civil penalties.

ExemptionsThere are a number of instances where actions can be exempt from both

assessment and approval under the EPBC Act. Further, certain actions can be

exempt from the assessment process, while still requiring approval under the

Act. For example, under s.158 the minister can grant an exemption from specific

provisions of the Act, including the entirety of the assessment and approvalprocess, if the minister is satisfied that it is in the national interest that those

provisions do not apply to the action. Notice of such exemptions, and the reasons

for granting them, must be published on the Environment Australia website.

There are also exemptions for actions that are declared under a bilateral agreement

not to require approval.

Opportunities for public participationThe opportunities for public involvement in the referral and assessment processes

have been mentioned in the text above; the following section gives more detail.

A referral goes to public comment when the proponent is not sure whether theproposed action will have to be assessed or not. Notice of the referral is published

on the Environment Australia website and comments must be submitted within

ten business days. Matters to be addressed in any submission must cover whether

the proposed action is likely to have a significant impact on any matter protected

under Part 3 of the EPBC Act.


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If the action is to be assessed by PER or EIS, then the minister prepares guidelines

for that process. At the discretion of the minister there may be an opportunity

for public comment at this stage. The question to be addressed will be whether

the guidelines are appropriate.Whether the assessment is by preliminary documentation, PER or EIS, the

proponent prepares draft documentation. An invitation to provide comment on

the draft is then published in a national, state or territory paper, depending on

the location of the action and, if practical, in a regional newspaper in the region

affected. A notice is also published on Environment Australias website. The

draft assessment document will include the time limit for comments, but it must

be not less than twenty days.

As well as addressing the accuracy and thoroughness of that documentation,

comments should address:

potential impacts on matters of national environmental significance orother relevant matters protected under Part 3 of the EPBC Act (see above)

social and economic issues

the history of the proponent in relation to environmental issuesany

allegations made against the proponent must be supported by reliable

evidence (see Chapter 11 for a discussion of defamation)

what conditions should be attached to any approval.

Where assessment is by way of public inquiry it is usually because public

involvement is seen to be necessary. However, whether objectors and third parties

are given the opportunity to make written or oral submissions is at the discretion

of the commissioners appointed to run the inquiry.

Legal reviewDecisions made under the EPBC Act are subject to judicial review under the

Administrative Decisions (Judicial Review) Act 1976 (Cth) in the Federal

Magistrates Court or the Federal Court. The EPBC Act makes special provision

extending the category of persons who can apply for judicial review (s.487).

However, there is no right of review in the Commonwealth Administrative

Appeals Tribunal.

In certain circumstances, a third party, or the minister, can seek an injunction in

the Federal Court to prevent a contravention of any of the provisions of theEPBC Act. The case ofBooth v Bosworth (referred to above) involved a third

party seeking an injunction to prevent a lychee farmer operating an electric grid

to protect his crop as the grid was causing the death of thousands of Spectacled

Flying-foxes, which the applicant argued was having a significant impact on a

World Heritage listed property.


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ConclusionActivities that impact on the environment in the ACT may therefore require

assessment under either the ACT legislation or the Commonwealth EPBC Act

or both. Both are complex processes and so this chapter has provided only asimple overview, but it highlights that there are at least some opportunities for

public participation and comment in both processes.


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ACT Environmental Law Handbook #4

Documents

Transcript of ACT Environmental Law Handbook #4